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It is unlikely that anyone would seriously reject the notion that the prohibition on torture has reached the status of a jus cogens norm in international law. On the contrary, the weight of authority in favour of this status is overwhelming. However, the effect in international law of a jus cogens norm, and of the norm which prohibits torture in particular, has yet to be fully worked out. The differences between the majority and minority judgments of the European Court of Human Rights in Al-Adsani v. the United Kingdom are urgent reminders of the uncertainty of litigation in areas of human rights law whose norms are the subject of seemingly overwhelming moral imperatives.
As with everything which cannot be seen or grasped, customary law remains something of a smiling sphinx in the realm of legal theory. Over the centuries, it has tended to generate puzzling questions of understanding and of construction, some linked to the concept of custom itself, others linked to the conception of custom within the context of a specific society with its special structure. In societies where custom continues to play a paramount role, that is, in societies deprived of a centralised legislator, the predominance of custom imports into the law and law-making the many uncertainties invariably linked with it. This is particularly true of international law. The objective of this short contribution is to address some of these problems in the form of brief commentaries following a concise statement of the point or problem at issue.
Originally it was suggested that I write about ‘rusty’ treaties – by which was meant ‘old’ treaties that have not been terminated – and their continued relevance in view of the principle of rebus sic stantibus, now enshrined in Article 62 of the Vienna Convention on the Law of Treaties 1969. I did not relish that. There would be problems of definition: when can a treaty be said to be ‘old’? Also, I remain sceptical about the usefulness of the fundamental change principle, being of the view that it is of little real importance. Although invoked many times, so far no international tribunal has applied it. The editors therefore kindly agreed that I could instead write about treaties of a universal character, in that they are open to universal participation, but which are ‘limping’.
On 31 May 2002, the EC Regulation on insolvency proceedings entered into force. As from that date, insolvency proceedings that are opened in any of the Member States of the European Union will in principle qualify for recognition in the other Member States, with the exception of the Kingdom of Denmark. On the whole, the Regulation contains the same provisions as the European Convention on Insolvency Proceedings that was ready for signature in 1995, but which never entered into force. Like the 1995 Convention, the present Regulation mainly contains provisions pertaining to the conflict of laws and only a few rules of uniform law. Moreover, the Regulation contains the same plurality of insolvency proceedings as the 1995 Convention: in addition to main insolvency proceedings that are recognised in the other Member States, territorial insolvency proceedings may be opened in the Member States where the debtor has an establishment.
The editors of this Review have had the felicitous idea to mark its 50th anniversary with a special issue devoted to the time factor in international law, with one contribution devoted to the apparently declining importance of travaux préparatoires in the interpretation of treaties. Under Article 32 of the Vienna Convention on the Law of Treaties, the preparatory works of a treaty are only to be consulted in a limited number of circumstances, and then only as supplementary means of interpretation: when application of the general rule (combining a textual approach with an interpretation in light of the treaty's object and purpose) does not lead to satisfactory results. Under Article 31, paragraph 2, of the Vienna Convention, travaux préparatoires do not even qualify as part of a treaty's context; clearly, the Vienna Convention envisages but a very limited role for a treaty's preparatory works. Yet, most international lawyers will almost automatically include a discussion of preparatory works in legal argument, and will consider it vital to do so: an argument without paying due regard to a treaty's drafting history is an incomplete argument. It is this ambivalence which I hope to explore.
With Milošević on trial, the work of the International Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY) continues as does the need to solve insufficiently answered questions of international law. As most of the accused used to hold positions of high authority in the military or in the civil sphere, the doctrine of superior responsibility has been considered in several of the cases decided by the Tribunal. These cases, together with cases decided by the International Criminal Tribunal for Rwanda (hereinafter: ICTR), have led to a discussion of whether also civilian superiors can incur responsibility under the doctrine of superior responsibility. Namely, the doctrine used to be applied more in the military sphere to commanders that were part of the hierarchical command structure, and was as such of less importance to considerations of responsibility of non-military leaders.
Netherlands Judicial Decisions Involving Questions of Private International Law
The April 2003 occupation of Iraq by armed forces predominately of the United States and the United Kingdom was accompanied by the looting of archaeological sites and the Iraqi National Museum. Priceless artifacts dating back 7000 years disappeared. No effort was made by the occupying forces to protect the sites, although a few journalists and military personnel were later arrested when they attempted to smuggle looted objects into the United States. Given that international law has obliged an occupying power to protect cultural property at least since the adoption of the Geneva Conventions of 1949 and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, a new Iraqi government could seek reparations if the occupying powers fail to take widespread and effective action to recover or replace lost objects and restore the museum and sites.
International law, both conventional and customary law, has been subject to rapid transformation and crystallization in the last few decades. This is especially the case in the field of international environmental law. Conduct that was not prohibited under international law at the time of initiation can now be characterized as contravening a number of newly and widely recognized principles and norms of international environmental law. Principles that may be said to have gained such wide recognition in international law as well as domestic law, albeit to varying degrees, include the precautionary principle, the polluter-pays principle and the sic utere tuo principle described below. Such principles have been invoked in a wide variety of international disputes with the aim of halting activities undertaken within one state having environmentally injurious transboundary consequences in other states or territories beyond the jurisdiction of any state (e.g., the High Seas).
The aim of this paper, in keeping with the theme of this jubilee issue, is to examine the private international law concept of public policy in its temporal dimension. The two main parts of the paper will discuss, in Part 2, the meaning and role of public policy, and, in Part 3, the impact of the ‘time element’ on public policy. This latter subject includes a discussion of both the point in time as of which public policy is applied, and of the way in which the values embodied in public policy change over the years. Part 4 will briefly note the way in which the concept itself, as distinct from the values that give it content, is evolving. For the most part my discussion is from the perspective of Anglo-Canadian private international law, and its counterparts in other British Commonwealth countries, because that is the system (they can be treated broadly as one system) with which I am most familiar. I will refer as well to sources in the United States and elsewhere to illustrate certain points, but neither space nor time have permitted a truly comparative study.
One of the most difficult topics in both American and European procedural law is the jurisdictional reach of courts over defendants in tort and contract actions. This has become particularly evident with the exponential increase in the use of the Internet as a communication and marketing device. Questions regarding the proper forum in, for example, defamation actions or consumer disputes present difficult questions for both American and European courts. The European Union's adoption of a new Regulation for cases filed on or after 1 March 2002 (the ‘Brussels Regulation’) presents an opportunity for fresh examination of this important topic.